The opinion of the court was delivered by: Justice Quinn
Appeal from the Circuit Court of Cook County Honorable Aaron J. Jaffe, Judge Presiding.
Plaintiff, Theresa Martin, brought a declaratory judgment action seeking to construe the limits of underinsured motorist coverage contained in insurance policies issued by defendants Illinois Farmers Insurance Company and Country Mutual Insurance Company. The trial court granted defendants' motions to dismiss plaintiff's action for declaratory relief pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 1998); 735 ILCS 5/2-619 (West 1998). On appeal, plaintiff contends that the trial court erred in finding that: 1) the antistacking provisions contained in defendants' respective insurance policies were unambiguous; 2) her loss of society claim is subject to the per person limit of the Illinois Farmers Insurance policy; and 3) she is not entitled to recover damages for defendants' alleged "vexatious and unreasonable" delay in settling her claim pursuant to section 155 of the Illinois Insurance Code (210 ILCS 5/155 (West 1998)). For the reasons which follow, we affirm.
On March 7, 1997, plaintiff's husband, Richard Martin III was killed while riding as a passenger in a vehicle driven by his father, Richard Martin Jr. Richard Martin Jr. had liability insurance with Illinois Farmers Insurance Company (Farmers) that was in full force and effect at the time of the accident with underinsured motorist coverage limits of $100,000 per person/$300,000 per occurrence.
The Farmers policy contains two clauses that are particularly significant to this appeal. Farmer's policy first defines "underinsured motor vehicle" as follows:
"[A] motor vehicle for which the owner or operator is insured or bonded for bodily injury liability at the time of the accident in an amount equal to or greater than the amount specified by the financial responsibility laws of Illinois, but less than the limits of liability shown on the declaration page of this policy for uninsured motorist coverage."
The next clause of importance in the Farmers policy is the "limits of liability" clause for uninsured and underinsured motorist coverage that provides in pertinent part:
"The limits of liability for underinsured motorist coverage are the same limits shown on the declaration page of this policy for uninsured motorist coverage. The amount of underinsured motorist coverage we will pay shall be the lesser of:
(1) The limits of liability reduced by all amounts paid in damages to the insured person by or for any person or organization who may be legally liable for the bodily injury;
(2) The unrecovered amount of damages established by an agreement, settlement, or judgment with or for the persons or organizations legally liable for the bodily injury."
We note that the section quoted above is cited by both Farmers and plaintiff as being a part of the insurance policy. However, a thorough review of the record indicates that this section of the insurance policy was not included in the record. Farmers' motion to dismiss, which is included in the record, is the only reference the parties' provide as evidence of the existence of this section of the policy. As both parties have cited the same section of the policy, we find that it is not in dispute and accept it as true.
Plaintiff had two insurance policies with Country Mutual Insurance Company (Country Mutual). The Country Mutual insurance policies provide a single underinsured motorist coverage limit of $100,000 per person/$300,000 per occurrence. Richard Martin III was named as an additional insured under both of the policies with Country Mutual.
Country Mutual policies define an "underinsured motor vehicle" as:
"[A]ny type of motor vehicle or trailer for which the sum of all liability bonds or policies at the time of an accident are less than the limit of this insurance."
The Country Mutual policy also contains an "underinsured motorist endorsement" which states in pertinent part:
"The most we will pay under Underinsured Motorists Coverage, Coverage U, to any one person is the lesser of:
(1) the difference between the 'each person' limit of this coverage as shown on the declarations page for this coverage and the amount paid to the insured by or on behalf of persons or organizations who may be legally responsible for the bodily injury caused by an underinsured motor vehicle; or
(2) the difference between the amount of the insured's damages and the amount paid to the insured by or on behalf of persons or organizations who may be legally responsible for the bodily injury caused by an underinsured motor vehicle.
***[T]he maximum amount we will pay to all insureds is the difference between the 'each occurrence' limit of this coverage as shown on the declarations page and the amount paid to the insured by or on behalf of persons or organizations who may be legally responsible for the bodily injury caused by an underinsured motor vehicle." Country Mutual's limit of liability clause provides as follows:
"The Uninsured-Underinsured Motorists limits of liability shown on the declarations page apply as follows:
a. The limit of liability for "each person" is the maximum amount we will pay for all damages arising out of bodily injury to any one person in any one accident. That maximum amount includes any claims of other persons for damages arising out of that bodily injury.
The figure listed is the most we will pay for any one person in any one accident regardless of the number of insureds, claims made, insured vehicles, premiums shown on the declarations page, or uninsured or underinsured motor vehicles involved in the accident***."
Following the accident, plaintiff made an appropriate claim and Farmers tendered to plaintiff $100,000, the limit of liability under Richard Martin Jr.'s policy with Farmers.
On August 17, 1997, plaintiff executed a "Release in Full of All Claims and Rights." The release ...